[00:00:00] Speaker 02:
Case number 22-5170, Andres F. Cabezas, affidavit, versus Federal Bureau of Investigation.

[00:00:08] Speaker 02:
Mr. Horowitz for the affidavit, Mr. Walker for the affidavit.

[00:00:13] Speaker 00:
May it please the court, Brian Horowitz for the appellant.

[00:00:17] Speaker 00:
We're here today with respect to an appeal of lower court's ruling on cross motions for summary judgment, as well as its unexplained denial of appellant's unopposed motions for discovery and in-camera review.

[00:00:30] Speaker 00:
Our position is that the court below aired by issuing orders with respect to our motions without providing explanation, specifically the motions for in-camera review and for discovery, and by failing to address all of our non-frivolous arguments in our motion for summary judgment and contrary to the other sides, the FBI's motion for summary judgment, and by reaching impermissible factual conclusions in its order.

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This court has the power to remand this matter back to the district court for full review and determination on each of those motions, so that a full record can be established and our client can have a chance to get all of the documents that would be responsive.

[00:01:17] Speaker 00:
I can go, so the court, we'll start with the first one.

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The motions for discovery and camera review, the court issued an order that did not contain any explanations about why it was denying them.

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And in US v. Gaskins, as we cite in our briefs, when a court vested with discretion makes a decision that is neither self-explanatory nor supported with any reasoning,

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It should be vacated and remanded for explanation rather than having the district.

[00:01:49] Speaker 03:
I mean, the court of appeals guess as to the discovery and in camera are available, but they're not routinely engaged in.

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In fact, quite the opposite in FOIA cases are very rare and

[00:02:05] Speaker 03:
So I guess the question is, when the declarations that the government has submitted satisfy the district court that segregation is adequate, that the documents have been adequately reviewed and defined, that the exemptions are appropriate, it's typical in those cases that there is not discovery and that there's not in camera review.

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And so given the nature of Judge Nichols' ruling on the merits,

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Is that not

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sufficient support for his exercise of discretion on those two extraordinary procedural steps?

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I mean, I suppose that's the FBI's position.

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If we're looking at this, we're alleging misconduct.

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We see that there are documents that haven't been produced.

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We see in the FBI's production and redaction, I should say, of documents, there are redactions that are clearly erroneous.

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But those are things that are teed up for you to challenge without

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discovery or in camera review.

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I mean, you're articulating the points here.

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And so those ordinarily are

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reviewed on appeal without, and reviewed by the district court without in-camera review.

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Well, I mean, as a primary, the primary thing that we wanted with the in-camera review was this arrest report.

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And I think we cited case law, I know we cited case law specifically in our brief and our reply brief addressing the fact that

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In camera review can be a tool used by the district court in that situation.

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And in this situation specifically here, the FBI basically did not produce the entire arrest report.

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on a couple of exemptions.

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I think it was seven E and five.

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We got a lot of arguments back and forth and a lot of briefing about both of those.

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But ideally, from our perspective, the district court was in the best position.

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They can analyze.

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We were saying that those exemptions didn't make sense, especially given that some of these documents had already been released.

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And especially given the nature of the document, we talked about the fact-based versus attorney

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communications.

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And it would have just been very easy and appropriate for the district court to say, okay, let me look at as a former district court judge, I would say that I would push back that it's just very easy and appropriate to have in camera review every time a lawyer asked for it.

[00:04:41] Speaker 01:
That's the whole reason we have these rules in FOIA cases where we have the whole Vaughn index procedure in the first place.

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So you don't have to do that because there's a bazillion of these cases in the district group and we don't have the time to do in-camera review and it should be reserved for instances where you really can't discern the merits of the arguments based on

[00:05:11] Speaker 01:
the papers that are filed.

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So why couldn't the district court make an intelligent and informed decision based on what was filed?

[00:05:25] Speaker 00:
I mean, I guess we go back to the fact that we had provided factual reasons for attacking various of the other documents and various of the other exemptions.

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And the district court didn't really adopt or accept or even utilize those attacks in any of its decisions.

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Here, we had a 15-page document that, as far as we know, contains

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potentially factual things and other things that had already been released.

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And we disagreed with the exemption.

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But it was a limited motion for in-camera review.

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It was a 15-page report.

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You're talking about, now you're raising a 7E, what you think is an inappropriate application of 7E, to this arrest plan.

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Is that what you're talking about?

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Yes.

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And these two, I should say that... The theoretical presence there of

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factual information, no doubt there's factual information in that plan.

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The government has said that is the way that it's organized and teed up and discussed and identified is going to reveal law enforcement techniques.

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And you're able, without in-camera review, to argue about that.

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But I have a prior question, which is I don't think you refer to 70 at all.

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in your opening brief.

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And in this court, if you don't raise an argument in your opening brief, that argument is forfeit.

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And I did not understand you to be challenging the FBI's invocation of Exemption 70.

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Am I wrong?

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We actually had challenged it in the court below.

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That's true, but we're a new court.

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We don't go back and reread your district court briefs, and we do sometimes, but it's not how we frame what we think brought to us.

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Understood.

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And the way I saw it is

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Your honor is correct.

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We didn't, as far as I can recall, I don't recall if we put that 7E in the opening brief, but it was something we were replying to because the government, the FBI raised it in their opposition.

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So it was within the scope of something we could address once it was raised in the opposition.

[00:07:41] Speaker 03:
Well, our circuit rules require the appellant

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to raise the issue.

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And I mean, a lot of your briefing is taking issue with what the district judge did, but we're here on de novo review.

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So we're not really here to re-examine and fly-spec the way the district court did things.

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And I understand that one thing that you're asking for is something that could only be done in the district court, which is the discovery we could do in camera review here.

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We typically don't.

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But setting that aside, we're here

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listening to you on de novo review.

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So you should make on the merits any arguments that you have.

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Your concern about the arrest plan, I've heard.

[00:08:22] Speaker 03:
What about the, you make a, in the district court anyway, argued about the screenshots versus the text of the interaction between the defendant and the putative minor.

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That information is available.

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The information that wasn't provided is not the exact same.

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It's a different format.

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I'm not sure that that's really simple under the public records or public domain exception.

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I mean, I suppose, and this goes back to the discovery motion itself, the concern that my client had, that we had, was that there were discrepancies.

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It looked like post-dated records.

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We talked about the misrep.

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allegations of mishandling of documents and the fact that the FBI actually in their original production produced something.

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And then only after we filed litigation did they actually go in the brief.

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They talk about, oh, we went and found these things in Tampa, but that was only after the litigation was filed.

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There were four

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total productions of documents.

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And I believe those were all, three of those were at least were after the litigation was filed.

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So it has been our position the whole time that the FBI was holding back on documents and misapplying exemptions.

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So you need to walk us through this, at least for me, you've talked about misconduct, you've talked about post-dating.

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I'm not really following your theory here.

[00:10:00] Speaker 03:
What you think happened and what support for that is?

[00:10:06] Speaker 00:
Well, what we think happened among a couple of things is, before that, what we want is to be able to just say we've gotten a full production from the FBI of all of the documents that have been requested.

[00:10:22] Speaker 00:
What we think happened was that there was agent misconduct and that the evidence of that agent misconduct

[00:10:30] Speaker 00:
has been withheld or obfuscated or kept outside of the required CRS system where those documents should have been kept.

[00:10:40] Speaker 00:
All right.

[00:10:40] Speaker 03:
So some documents were produced from, what is it called?

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The satellite office, the Orlando.

[00:10:49] Speaker 03:
Yeah.

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And you're arguing in part about the adequacy of the search.

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And the argument there to me actually

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I'm going to have to ask the government.

[00:11:02] Speaker 03:
They don't explain why the person who they asked to do the search did it, why other people weren't asked to search, what they were searching, what terms they were using to search.

[00:11:12] Speaker 03:
So there are some real questions there about the adequacy of the search.

[00:11:15] Speaker 03:
But putting that aside, you imply, or correct me if I'm wrong, that the fact that the documents kind of trickled out is itself an indicium of wrongdoing.

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But in our experience in FOIA cases,

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We do not read misconduct from the fact that some documents come later.

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People are digging for stuff.

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When they find it, they produce it.

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But I take you to have some other basis for your misconduct allegations?

[00:11:45] Speaker 00:
The misconduct isn't necessarily the trickle of documents out.

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The misconduct is that the records were kept outside of the system that they were supposed to be kept inside of intentionally or otherwise.

[00:12:00] Speaker 03:
So your remedy for that is to explain why

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the search was too narrow and asked for broader as you did effectively with getting the documents that were outside the CRS system.

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And your further argument about that is?

[00:12:18] Speaker 00:
It's hard to confirm that all of the documents that were outside of the CRS system have been produced.

[00:12:26] Speaker 02:
We understand that is the general argument, but the problem is give us some specifics.

[00:12:32] Speaker 02:
And what about

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The fact that there, you argued about there were some emails.

[00:12:44] Speaker 00:
Thank you, Your Honor.

[00:12:45] Speaker 00:
I mean, that's a clear example, right?

[00:12:47] Speaker 00:
We produced an expert affidavit saying that because of the way that this investigation was or action was conducted, there necessarily have to be other emails in existence and records in existence related to interactions with Craigslist.

[00:13:04] Speaker 00:
The government never responded to that.

[00:13:06] Speaker 00:
The court didn't address it at all.

[00:13:09] Speaker 03:
Wait, I thought there was a response to that.

[00:13:10] Speaker 03:
Go ahead.

[00:13:11] Speaker 01:
But the FOIA requests were for documents related to Mr. Kabazins.

[00:13:18] Speaker 01:
And so what your expert said is that, yes, there would have been some emails about just basically from Craig's list about setting up and creating the email account.

[00:13:33] Speaker 01:
But those emails wouldn't have been related to Mr. Cabezas.

[00:13:38] Speaker 01:
They were just related to setting up the email account generally.

[00:13:43] Speaker 01:
So they're not even responsive.

[00:13:46] Speaker 00:
I don't know that they were only just that.

[00:13:48] Speaker 00:
I think Mr. Demetrios also indicated that there would be correspondence back and forth while the emails were anonymized that would be through Craigslist that were not produced.

[00:14:00] Speaker 02:
What about Judge Wilkins' point about

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How is your client directly affected?

[00:14:09] Speaker 00:
Well, I mean, he's entitled to request all documents related to anything he asks for as long as it's not- And what did he ask for specifically in this respect?

[00:14:21] Speaker 00:
You know, I don't actually have the- This is silly, of course.

[00:14:25] Speaker 02:
No, it's not silly.

[00:14:26] Speaker 02:
We're trying to- No, no, no.

[00:14:28] Speaker 00:
Your request is not silly.

[00:14:30] Speaker 00:
I'm sorry.

[00:14:32] Speaker 02:
One question I had was that you did have some expert testimony about Craigslist and how it functions.

[00:14:42] Speaker 02:
And yet, though you were asking for this type of document, you never got it.

[00:14:50] Speaker 02:
And your argument I thought was that they didn't look in the right place.

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Am I wrong about that?

[00:14:58] Speaker 02:
That's one of the arguments is that- Well, we only need one at a time, okay?

[00:15:03] Speaker 00:
Sure.

[00:15:04] Speaker 02:
And maybe you want to stick with your strongest one given Judge Pillard's point about what our standard of review is in these cases.

[00:15:13] Speaker 02:
So I'm looking at one of the arguments that may be persuasive.

[00:15:19] Speaker 02:
So I want to get you to make the strongest argument you can as to why you think the district court

[00:15:27] Speaker 02:
and why this case ought to go back on the adequacy of the search as to that, those emails.

[00:15:35] Speaker 00:
Sure, and this goes back to the assertion that we have and the evidence that we produced showing that the records, or at least some of these interactions were done on a T-Mobile cell phone that was not FBI property.

[00:15:48] Speaker 00:
It has attributable IP address.

[00:15:50] Speaker 00:
And the fact is the record search doesn't seem to have addressed those other offline outside of

[00:16:00] Speaker 00:
resources that were improperly used by these agents in their investigation.

[00:16:06] Speaker 00:
And that is the point.

[00:16:08] Speaker 00:
We can't get to those records because they held them away.

[00:16:11] Speaker 00:
And the FBI either doesn't have the ability to say after the fact when those records haven't been properly put into the FBI system, hey, here's the records because they don't have them.

[00:16:25] Speaker 00:
in their possession, even though they should.

[00:16:28] Speaker 00:
And the FBI agents themselves are required to submit everything that they access to that system.

[00:16:35] Speaker 01:
My indication is that the FOIA requested any and all records under my name and or identifier assigned to my name.

[00:16:52] Speaker 01:
And then it listed

[00:16:54] Speaker 01:
kind of types of records that he was listed to, that he wanted.

[00:17:04] Speaker 01:
So the FOIA request was specifically linked to records under Mr. Cabeza's name.

[00:17:15] Speaker 01:
And so that's why, when I look at the declaration of Mr. Dimitrelos, that's your expert, right?

[00:17:25] Speaker 01:
Um, okay, I look at that declaration in the first 17.

[00:17:33] Speaker 01:
Paragraphs basically establish, you know, his background experience expertise.

[00:17:42] Speaker 01:
The money paragraph for our purposes is the final one.

[00:17:46] Speaker 01:
Paragraph 18.

[00:17:48] Speaker 01:
Yes.

[00:17:50] Speaker 01:
And he says, okay,

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Here's how craigslist.org email system works.

[00:17:59] Speaker 01:
And he says in that final sentence, the posting individual receives emails from Craigslist relating to the initial posting of the advertisement, management of the advertisement, and forwarded communications from people responding to the advertisement.

[00:18:21] Speaker 01:
Now all of that,

[00:18:22] Speaker 01:
is referring to what the agent would have received, right?

[00:18:28] Speaker 01:
Not what Mr. Cabasis would have received.

[00:18:32] Speaker 01:
Am I correct about that?

[00:18:33] Speaker 00:
Those are things the agent would have received because these are on the agent side of the use of Craigslist, but that doesn't mean that they wouldn't refer to or mention Mr. Cabasis.

[00:18:45] Speaker 01:
Well,

[00:18:48] Speaker 01:
I don't see anything in paragraph 18 that tells me that any of those sorts of emails that is being referred to are necessarily going to refer to Mr. Cabezas by name.

[00:19:06] Speaker 01:
I mean, my overall point here is that in these FOIA cases, we have said the court doesn't have to oversee a search

[00:19:17] Speaker 01:
that results in finding every document imaginable that might be responsible.

[00:19:24] Speaker 01:
The court has to oversee a reasonable search.

[00:19:28] Speaker 01:
And to the extent that you say that the search isn't reasonable and they should have looked elsewhere, you can't just say that.

[00:19:36] Speaker 01:
You have to give the court some reason to believe that there might be something elsewhere.

[00:19:43] Speaker 01:
And you have to identify what the elsewhere is.

[00:19:47] Speaker 01:
You have to say, this is the other place that we think needs to be searched that hasn't been searched, because the court can't just order the FBI to search everywhere else outside the CRS system.

[00:20:05] Speaker 01:
And what the court did here was it got a declaration that said, OK,

[00:20:12] Speaker 01:
We reached out to the officer that the agent that had custody and control and management of the case file.

[00:20:24] Speaker 01:
And we asked that person, is there anything else related to Mr. Cabezas that didn't make it into the CRS system and they found some things and those things have been turned over or

[00:20:39] Speaker 01:
have been withheld and appear on the Vaughn declaration.

[00:20:43] Speaker 01:
What else is the court supposed to do at that point?

[00:20:47] Speaker 00:
Your Honor, we raised the two places that potentially could have other records that we think have other records.

[00:20:54] Speaker 00:
Those would be, and we talked about it, we provided evidence regarding the T-Mobile phone.

[00:20:58] Speaker 00:
And we also talked about agent hires prior.

[00:21:02] Speaker 03:
Wait, what are the two other places?

[00:21:05] Speaker 00:
T-Mobile phone and whatever personal computer of the agents here.

[00:21:11] Speaker 00:
So we talked about, and I'll get there in a second, but the idea was we presented evidence that one of these agents had been previously reprimanded for conducting this kind of operation from a personal computer as opposed to an FBI computer.

[00:21:27] Speaker 00:
it's our position that that's what happened again here.

[00:21:30] Speaker 00:
And so there are records in that place that haven't made it.

[00:21:33] Speaker 00:
And then if the agent that's being asked, hey, do you have any more records has a disincentive to provide things that are on their personal computer because that's how they already got in trouble or their partner already got in trouble, they're not gonna produce those docs.

[00:21:47] Speaker 01:
What's the basis for?

[00:21:50] Speaker 01:
inferring that an agent may have used their personal computer in the investigation of Mr. Campesos.

[00:21:59] Speaker 00:
Two bases.

[00:22:00] Speaker 00:
One is that IP address with the T-Mobile phone.

[00:22:03] Speaker 03:
That's a phone, not the computer, right?

[00:22:05] Speaker 00:
Correct.

[00:22:05] Speaker 00:
You're right.

[00:22:05] Speaker 00:
You're right.

[00:22:06] Speaker 00:
But that's an outside source that's not FBI that we don't have any records about.

[00:22:10] Speaker 03:
Now, you are assuming some things that aren't apparent, at least to me.

[00:22:15] Speaker 03:
OK.

[00:22:16] Speaker 03:
I mean, does the FBI never use T-Mobile phones?

[00:22:20] Speaker 03:
in undercover operations.

[00:22:22] Speaker 00:
This gets a little bit more technical than I'm really prepared to discuss, but there's a attributable versus unattributable IP address issue here that at least my understanding is

[00:22:35] Speaker 00:
If it had been coming from a government phone or a government device, the IP address wouldn't show up the same way it did with respect to this T-Mobile.

[00:22:45] Speaker 03:
But you don't think the government would use a phone that doesn't appear to be a government phone when it's doing undercover?

[00:22:54] Speaker 00:
Either way, if they did or didn't, then the original record should have been submitted.

[00:23:01] Speaker 03:
But it's my understanding that the government agents aren't supposed to use non-government devices and- All I'm saying is this could be a government device, but it could be not through government IP address because it's part of an undercover

[00:23:21] Speaker 03:
And the other thing is, I thought they provided all of the mobile phone.

[00:23:27] Speaker 03:
I mean, the prosecution was based on, or the charge was based on the mobile phone.

[00:23:34] Speaker 03:
Transcript.

[00:23:35] Speaker 00:
So I think that's a different phone that you're thinking of.

[00:23:40] Speaker 00:
That's my client's phone.

[00:23:42] Speaker 00:
So I believe that was the transcript taken from that particular device.

[00:23:48] Speaker 03:
If it's from the client's phone, then why would... So you want the agent's phone to cross-check

[00:23:56] Speaker 03:
the accuracy of the transcripts from your client's phone?

[00:23:59] Speaker 00:
We have a couple of records and we cited to them in our briefs where it looks like things have been backdated or it looks like things are missing.

[00:24:09] Speaker 00:
And so, yeah, that would be ideal.

[00:24:12] Speaker 00:
Or at least, like I said, going back to the... Those arguments went over my head.

[00:24:16] Speaker 03:
I did not, in reading your brief, what I thought was carefully.

[00:24:19] Speaker 03:
I did not follow your points about backdating or deleting.

[00:24:24] Speaker 03:
Can you just tell us what you're referring to?

[00:24:28] Speaker 00:
Yes.

[00:24:29] Speaker 00:
Hold on one second.

[00:24:30] Speaker 00:
I'll pull up the actual page number so I don't have to speak in ambiguities.

[00:24:39] Speaker 00:
I apologize.

[00:24:50] Speaker 00:
So the backdating records, there was a footnote, and we were referring to JA514 versus JA603, and there was a slight discussion about, you know, at one point there's a discussion of Mr. Kabasis being

[00:25:06] Speaker 00:
on this printout that the FBI did provide in their FOIA production, one version of it says prior to the arrest, prior to the meeting him, that he was dangerous and one did not.

[00:25:18] Speaker 00:
And it was unclear why there was a distinction.

[00:25:20] Speaker 00:
The only thing that made sense was that someone had gone back and added that for some reason and backdated.

[00:25:25] Speaker 03:
So the argument in your brief that is linking to this is where?

[00:25:29] Speaker 03:
Just so that we have it as a reference?

[00:25:33] Speaker 00:
Yeah, it's, hold on one second.

[00:25:36] Speaker 00:
I think that might be.

[00:25:37] Speaker 00:
You referred to a footnote?

[00:25:39] Speaker 00:
I think it's a footnote in the reply brief.

[00:25:43] Speaker 00:
But it's also, I believe.

[00:25:45] Speaker 00:
Oh.

[00:26:01] Speaker 00:
No.

[00:26:05] Speaker 00:
Page 15 footnote 7.

[00:26:08] Speaker 00:
Of our reply brief, it's mentioned.

[00:26:10] Speaker 00:
I believe it might also be met.

[00:26:11] Speaker 00:
I believe it's also mentioned in the underlying brief.

[00:26:14] Speaker 00:
But it's definitely mentioned there.

[00:26:17] Speaker 00:
It's in the record.

[00:26:18] Speaker 01:
So where in your opening brief?

[00:26:21] Speaker 01:
Do you say?

[00:26:22] Speaker 01:
That.

[00:26:24] Speaker 01:
The district court aired because it did not also.

[00:26:29] Speaker 01:
order the FBI to search T-mobile phones or personal computers of agents?

[00:26:39] Speaker 00:
I guess we didn't say it explicitly that way.

[00:26:42] Speaker 00:
We talked about the misconduct and the fact that it was our belief that these records should have been reviewed in some way or shape or another.

[00:26:53] Speaker 00:
But I don't know that it was explicitly stated as succinctly as you just put it, Your Honor.

[00:26:58] Speaker 02:
Well, the question is, was the district court on notice of what your argument was?

[00:27:03] Speaker 02:
And you're acknowledging no.

[00:27:07] Speaker 00:
These were the bases for the motion for summary judgment, the opposition for the motion for summary judgment.

[00:27:14] Speaker 02:
No, I understand you made the broad arguments.

[00:27:19] Speaker 02:
All right.

[00:27:19] Speaker 02:
So now you're asking us to reverse for failure to do something very specific.

[00:27:29] Speaker 02:
but you never alerted the district court.

[00:27:32] Speaker 02:
That's what I hear you responding to Judge Wilkins colloquy.

[00:27:37] Speaker 00:
I think we raised these in our motion to amend.

[00:27:40] Speaker 00:
I think all of these specific issues were raised multiple times in the court below.

[00:27:45] Speaker 00:
Judge Wilkins was, at least as I was responding to, was talking about where it was in our initial brief in front of this court.

[00:27:53] Speaker 02:
No question about it.

[00:27:57] Speaker 02:
It's not enough to say the district court heard.

[00:28:02] Speaker 02:
Why?

[00:28:02] Speaker 00:
Say that again.

[00:28:08] Speaker 02:
And I thought that's what Judge Pillard was asking you about in terms of changing of what the email said and things like that and telephone.

[00:28:24] Speaker 02:
What's your other strong argument?

[00:28:30] Speaker 00:
I mean, I think we go to the other side of this is that misconduct, various misconduct allegations, the FBI did not, the FBI

[00:28:41] Speaker 00:
We specified some misconduct allegations.

[00:28:43] Speaker 00:
We talked about a few of them here now.

[00:28:45] Speaker 00:
The FBI didn't really address them other than to say in their brief in the court below that we hadn't specified anything.

[00:28:53] Speaker 00:
We demonstrated to that court a couple of different times that we had specified what we thought was alleged misconduct, at least as detailed as we could based on the information we had.

[00:29:04] Speaker 02:
For example,

[00:29:05] Speaker 00:
The iPhone, I mean the Verizon phone, but the other big one that was, I think we haven't even talked about today is this, the records pertaining to and the actions around

[00:29:24] Speaker 00:
the agents attempted return of what was evidenced as iPhone, Mr. Kabasis' iPhone, to Mr. Kabasis in prison while the appeal was still ongoing.

[00:29:33] Speaker 00:
That was another allegation of misconduct that we cited to as a reason for why other records should be unexempted or why we had a right to see them.

[00:29:44] Speaker 03:
So, yeah, explain to me, that sounds

[00:29:50] Speaker 03:
peculiar that when there's an appeal going on, something that was evidence.

[00:29:56] Speaker 03:
Now, presumably, I gather one of the things that you say the government is wrongly withholding is the screenshots that it has kept somewhere of that phone.

[00:30:08] Speaker 03:
But what flows in your mind, or what could flow?

[00:30:13] Speaker 03:
And I understand this is why you wanted more discovery or discovery.

[00:30:20] Speaker 03:
The goof, why is it insidious?

[00:30:23] Speaker 03:
What is it trying to do or revealing that is prejudicial to Mr. Cabeza's FOIA entitlement?

[00:30:34] Speaker 03:
The attempt at giving back of the phone.

[00:30:36] Speaker 03:
It's like, OK, it's not taking care of evidence.

[00:30:38] Speaker 03:
That phone is apparently no longer evidence because it seems to be wiped of stuff.

[00:30:43] Speaker 00:
I don't know that it is wiped of stuff, Your Honor.

[00:30:46] Speaker 03:
When the brother was looking at it, things weren't showing up.

[00:30:49] Speaker 00:
That's true.

[00:30:50] Speaker 00:
He said that some things were not in there.

[00:30:53] Speaker 00:
The phone is an interesting kind of mess, right?

[00:30:58] Speaker 00:
It's a digital record that we have not been able to access.

[00:31:02] Speaker 00:
They tried to give it back while it shouldn't have been given back.

[00:31:09] Speaker 00:
We would love to have seen it and see it and give it to our expert to analyze it for various

[00:31:14] Speaker 00:
purposes, because we think that there's records on there that would be beneficial to my client.

[00:31:20] Speaker 00:
We can't get, we either can't get the phone or we can get the phone in the wrong way.

[00:31:23] Speaker 00:
So the way it was that the that the agents tried to give it back was indicative of

[00:31:29] Speaker 00:
I don't know what, a negligence or insidious intent to cause my client to be committing a further crime while in prison receiving this device, which the FBI- But that's not before us.

[00:31:43] Speaker 03:
So they mishandled it.

[00:31:44] Speaker 03:
What FOIA record or information that your client wants, has he been prevented from getting?

[00:31:58] Speaker 00:
I suppose that the contents of the phone are especially the communications that are on there versus the screenshots that have been submitted would be demonstrative of any differences or misconduct.

[00:32:12] Speaker 01:
What's your authority that screenshots are not under FOIA are not a permissible substitute for the actual raw data?

[00:32:27] Speaker 01:
That if there's a bunch of emails that the government can't turn over, printouts of the emails, the government has to give you the emails in electronic format.

[00:32:39] Speaker 01:
Is there any case, FOIA case, that's ever held that that's what has to happen?

[00:32:45] Speaker 00:
I haven't briefed that particular issue, so I don't have that at my fingertips, Your Honor.

[00:32:50] Speaker 03:
Just stepping back and thinking about the FBI did this search of the Tampa field office and located the two materials that you had identified as missing the phone recordings and the photos of the arrest scene.

[00:33:01] Speaker 03:
Are there other responsive materials that you suspect are missing from the Bureau's production that leads you to conclude that still that search isn't adequate?

[00:33:12] Speaker 00:
Well, I mean, I think the prime example, it's hard to guess what's not there, but the prime example would be the records, and your honors have addressed this already, but the records pertaining to the Kresge List advertisements and correspondence that permeated that system.

[00:33:32] Speaker 00:
Those would be records that we would think would exist.

[00:33:34] Speaker 00:
We're fairly certain that they exist, but we haven't seen them.

[00:33:37] Speaker 03:
Anything else?

[00:33:39] Speaker 00:
Off the top of my head, I don't know.

[00:33:45] Speaker 03:
How about the, you pointed to these Bates numbers 160 and 226, saying that the FBI wrongfully redacted Cobasus' name from those, and then you point to, I think, Bates number 91 to say those documents refer to Cobasus, but the documents at 160 and 226

[00:34:10] Speaker 03:
have a different case number from the 91 documents.

[00:34:18] Speaker 03:
So it seems like it maybe wasn't Cubasis.

[00:34:20] Speaker 03:
Do you have any response to that?

[00:34:23] Speaker 00:
And without having anyone ever seen this unredacted document, I don't know who it would refer to.

[00:34:31] Speaker 00:
There's no other individuals that were indicted or related to this indictment as far as I'm aware in the criminal investigation.

[00:34:40] Speaker 00:
And I mean, going to page 160, I believe Your Honor just referred to that, the name Andres Cabezas is listed on there a couple of times.

[00:34:52] Speaker 03:
So where are you saying it was wrongfully redacted?

[00:34:57] Speaker 00:
Well, so that was an example of a wrongful redaction, right?

[00:35:01] Speaker 00:
I mean, to the extent that it says to document the indictment of redacted, who else could it be?

[00:35:07] Speaker 00:
If it is someone else, that would be an explanation that would come from the FBI, but I don't understand how that would make any sense.

[00:35:17] Speaker 00:
Why would this indictment memo or communication refer to indictment of someone else when it's all about Andres Cabezas?

[00:35:39] Speaker 03:
Just questioning whether it would be someone else because it's,

[00:35:44] Speaker 03:
It has a different case number, but you don't have any explanation for that.

[00:35:47] Speaker 00:
I can't imagine an explanation for that.

[00:35:50] Speaker 00:
I don't understand.

[00:35:51] Speaker 00:
I can't imagine a factual situation.

[00:35:54] Speaker 00:
I mean, short of a typographical error either in the name, which is repeated multiple times, a specific date, right?

[00:36:01] Speaker 00:
The description, the details does pertain to kibasis, every component of it does.

[00:36:07] Speaker 00:
So I don't understand.

[00:36:08] Speaker 00:
I can't.

[00:36:10] Speaker 03:
Comprehend what other name would be under the synopsis paragraph when everything in the details below refers to a good basis and the Going back to your arguments about exemption 7c and and 70 you argue that there there's information should have been segregated and released but you're not you're not arguing that the Documents themselves are not records or information compiled for law enforcement purposes.

[00:36:37] Speaker 03:
You're just arguing about the breadth of

[00:36:38] Speaker 03:
what that covers.

[00:36:39] Speaker 00:
Right.

[00:36:40] Speaker 00:
They blocked the whole 15 pages or however many pages it was.

[00:36:44] Speaker 00:
It's completely not produced.

[00:36:47] Speaker 00:
So yeah, I would think that some of the information, especially to the extent as we talked about before, has already been produced or is no longer part of an ongoing investigation, can be produced.

[00:36:59] Speaker 00:
So yes, it could be segregated out or redacted.

[00:37:05] Speaker 03:
Any further questions?

[00:37:06] Speaker 03:
Judge Wilkins?

[00:37:06] Speaker 03:
Judge Rogers?

[00:37:13] Speaker 03:
Mr. Horace, did you reserve any time for rebuttal?

[00:37:16] Speaker 00:
I reserved two minutes.

[00:37:18] Speaker 03:
All right.

[00:37:18] Speaker 03:
We'll give you two minutes.

[00:37:20] Speaker 00:
Thank you.

[00:37:28] Speaker 03:
Mr. Walker from the United States.

[00:37:30] Speaker 04:
Good morning.

[00:37:30] Speaker 04:
May I please the court?

[00:37:31] Speaker 04:
Johnny Walker representing the FBI.

[00:37:33] Speaker 04:
Your honors, I think what the declarations and our briefs in this case describe is a very routine FOIA request to the FBI by the subject of an FBI investigation for all records under that individual's name or any number identified with that individual's name.

[00:37:48] Speaker 04:
So in response to that request, the FBI undertook a search of the indexing system that it uses to index investigative files that are indexed to a person's name, located the file,

[00:37:59] Speaker 04:
with records under Mr. Kabasis' name and processed everything in there for release.

[00:38:03] Speaker 04:
The exemptions applied, everything in this case is covered by a law enforcement exemption of the kind that you would expect to apply to records in a law enforcement investigation file.

[00:38:14] Speaker 04:
There are some underlying subsumed exemption five and exemption six withholdings as well, but everything here is covered by the type of law enforcement exemptions you'd expect to see in a case like this.

[00:38:25] Speaker 03:
Now, this investigation was conducted out of the Orlando Maitland.

[00:38:31] Speaker 04:
I believe it was the Tampa field office that was contacted about additional information from Mr. Capes.

[00:38:36] Speaker 03:
Well, that's why I'm asking the investigation was conducted out of Orlando Maitland or out of Tampa.

[00:38:42] Speaker 04:
I know that what the declarations indicate is that the special agent who was responsible for Mr. Cabezas' file was in Tampa.

[00:38:51] Speaker 04:
That was the individual contacted for the sort of targeted retrieval of the additional records.

[00:38:56] Speaker 03:
And why was it targeted?

[00:38:58] Speaker 03:
I mean, so they just went and asked him for the things that Mr. Horowitz had identified?

[00:39:04] Speaker 04:
Yes, that's correct, Your Honor.

[00:39:05] Speaker 04:
So the initial search that was conducted by the FBI was, I think, clearly reasonable in relation to the request.

[00:39:15] Speaker 04:
As for documents and records under Mr. Kabasis' name, the place where the FBI stores those files is in its central records system, which is indexed to individual's name, and it located the file containing records under Mr. Kabasis' name.

[00:39:29] Speaker 04:
During the course of litigation, Mr. Kabasis' counsel identified specific records that Mr. Kabasis believed should have been under his name, but apparently were not.

[00:39:39] Speaker 04:
So in response to that, the FBI made an inquiry to the case agent who was responsible for Mr. Kabasis' file, responsible for the investigation records, to ask whether or not there were any records that were not in the file that related to Mr. Kabasis' investigation.

[00:39:55] Speaker 03:
He wasn't the only agent who was involved in this case, was he?

[00:39:59] Speaker 04:
I'm aware of two, I'm not aware of the agent that was contacted.

[00:40:03] Speaker 04:
I'm aware of two agents that were involved in the case and the agent who was contacted may or may not be the same.

[00:40:09] Speaker 04:
The agent who actually corresponded with Mr. Kebasis undercover and was the primary agent for the case was agent Kaufman.

[00:40:16] Speaker 04:
And there's also reference to an agent hire who I believe was the coordinator of the child exploitation unit.

[00:40:22] Speaker 03:
And so the question is, once there was reason to believe that the CRS did not contain all responsive documents because the requester gave the Bureau reason to believe that there were other documents, the scope of the ensuing search is

[00:40:44] Speaker 03:
not very fully explained.

[00:40:47] Speaker 03:
And you've helped me out by saying, well, what they did was they went and tried to find the documents that he'd identified.

[00:40:51] Speaker 03:
But my understanding under our precedent is that when there's reason to believe that the search that was conducted was not sufficient to identify all reasonably available documents, that a further search should be conducted.

[00:41:08] Speaker 03:
or broadly, that there should be, you know, let's contact the people who worked on this case and ask them if they have anything responsive by these same terms or, you know, in some other more categorical description.

[00:41:19] Speaker 03:
But my understanding is that that was not done.

[00:41:22] Speaker 04:
Well, what was done, Your Honor, and I think it was reasonable and well-described in the declaration.

[00:41:26] Speaker 04:
We know that the initial search was of the CRS system.

[00:41:30] Speaker 04:
And the only documents that there was reason to believe were not in that system were certain specific documents.

[00:41:35] Speaker 04:
that Mr. Kabasis' counsel identified in the litigation.

[00:41:38] Speaker 04:
That was the arrest photos and the two audio recordings.

[00:41:42] Speaker 03:
I'm not sure that that's the correct inference.

[00:41:44] Speaker 03:
I mean, there were documents that were not included.

[00:41:48] Speaker 03:
The information that the requester had was that there were these two categories that he could imagine should be in the file.

[00:41:57] Speaker 03:
But as you know, FOIA is kind of putting your hand into a black bag and not really knowing what you're looking for.

[00:42:05] Speaker 03:
And so the burden shifts then to the government to show, well, in response to this shortfall, we've taken the next step, which is realizing that CRS didn't have everything on this investigation.

[00:42:18] Speaker 03:
We've looked in the places generally for information relating to the investigation where other information might be found.

[00:42:26] Speaker 03:
It doesn't sound like that step was taken.

[00:42:28] Speaker 03:
It's a general look.

[00:42:29] Speaker 03:
for other information in other places.

[00:42:32] Speaker 04:
I think it was general, your honor.

[00:42:33] Speaker 04:
What the declarations describe is that that individual custodian at the Tampa Field Office, the inquiry to that individual was, are there any records, any records at all that are about Mr. Cabezas that are not included?

[00:42:45] Speaker 03:
Do we have an appointment to which declaration you're talking about?

[00:42:48] Speaker 04:
Yes, your honor.

[00:42:49] Speaker 04:
I'm talking about, I believe it's the third Seidel declaration, and this is on page JA 649.

[00:43:13] Speaker 03:
I've targeted search of the Tampa field office, contacted a special agent, requested a search for any additional documents the SI maintained outside the case file.

[00:43:26] Speaker 04:
That's for any additional documents?

[00:43:28] Speaker 03:
Any additional documents that fill in the blank.

[00:43:33] Speaker 04:
That were not in the case file?

[00:43:35] Speaker 03:
Like, he's got a whole filing cabinet.

[00:43:37] Speaker 03:
But so the nexus to this case is not explained.

[00:43:44] Speaker 04:
Well, your honor, I think.

[00:43:47] Speaker 03:
You know, typically there's some some further description of the search.

[00:43:51] Speaker 03:
Sure.

[00:43:51] Speaker 03:
Well, I have to review it.

[00:43:52] Speaker 03:
I think there's two.

[00:43:54] Speaker 04:
Understood, your honor.

[00:43:54] Speaker 04:
I think there's two different types of searches that you see performed sometimes.

[00:43:57] Speaker 04:
There's sort of centralized search, which is the search that the FBI initially performed here of a broad system that employed search terms.

[00:44:05] Speaker 04:
employee going through hits to determine whether or not they responsive and you often see in these cases a more targeted search in which individual custodians of records are contacted and asked to retrieve any documents that are responsive to the request and and you know there can be you know.

[00:44:21] Speaker 04:
dozens, hundreds of custodians in any individual case.

[00:44:24] Speaker 04:
And you don't necessarily describe each and every folder that that individual clicked on.

[00:44:28] Speaker 04:
What you say is you inquire of the custodian.

[00:44:30] Speaker 04:
We understand you're the custodian of this type of records.

[00:44:33] Speaker 04:
Please provide anything that's responsive to the request.

[00:44:36] Speaker 04:
And that's what occurred here.

[00:44:37] Speaker 03:
But the question is, if somebody who is the custodian, typically we have from you declarations that would say, CRS is the main repository, everything's forwarded to it.

[00:44:48] Speaker 03:
Occasionally, some things aren't forwarded to it.

[00:44:51] Speaker 03:
In that event, it would have been forwarded from the agents involved in the investigation to the custodian of records.

[00:44:58] Speaker 03:
field office you know we confirmed that that was done here and therefore contacted only the custodian of records or you know some records weren't forwarded and therefore we contacted all the agents who were in the investigation and asked them to search in their hard copy files and on their desktops I mean there's nothing like that it sort of tells us what was the targeting why was this person chosen

[00:45:21] Speaker 03:
Are we finding it reliable that this person is a custodian of all the records?

[00:45:26] Speaker 03:
Where did he find the things that he did produce?

[00:45:30] Speaker 03:
Did he call up the other agents, or were they on his desk, or were they in a file labeled Cabeza?

[00:45:36] Speaker 03:
So we don't really, as a court, have the usual indicia that we are able to rely on in the unusual FOIA context where we rely on the government's affidavits.

[00:45:48] Speaker 04:
Your honor, I think you start from the position that the CRS generally contains all of the FBI's investigatory records.

[00:45:57] Speaker 04:
So everything would reasonably be expected to be located there.

[00:46:00] Speaker 04:
And our declaration, the second Seidel declarations explains in some detail why that is so.

[00:46:05] Speaker 04:
That is the system that the FBI uses to respond to FOIA requests.

[00:46:08] Speaker 04:
It's also the system that the FBI uses to carry out its core law enforcement function.

[00:46:12] Speaker 04:
This is how the FBI

[00:46:13] Speaker 04:
retrieves the records that are central to its mission.

[00:46:16] Speaker 04:
So you start with that assumption, all the records are going to be contained within the CRS, and then during the course of litigation, council points this out, a limited set of records that appear to have been overlooked that weren't in the CRS.

[00:46:31] Speaker 04:
You might say that arguably they're not responsive to Mr. Capacic's request because they're not under his name.

[00:46:36] Speaker 04:
But the FBI contacted, and it explains the individual that it contacted.

[00:46:40] Speaker 04:
It contacted someone who maintains plaintiff's criminal case file, the person who maintains the file.

[00:46:46] Speaker 04:
That's the custodian, and they were contacted because they maintain that file.

[00:46:50] Speaker 04:
They were asked to search for any additional documents that that agent maintained outside of the case file.

[00:46:57] Speaker 04:
And they found precisely the two documents, the two categories of documents that Mr. Cabezas indicated as having been over.

[00:47:05] Speaker 04:
So I think that cures, I think even Mr. Cabezas has said that specific, the ability to locate those overlooked records cured at least that objection, that aspect of the FBI search.

[00:47:25] Speaker 04:
Your Honor, I just want to address you were discussing with opposing counsel the

[00:47:31] Speaker 04:
his contention that the FBI redacted his own name from certain records.

[00:47:34] Speaker 04:
As Your Honor pointed out, the case numbers are different on those records.

[00:47:38] Speaker 04:
Mr. Seidel also addressed that allegation in a declaration and said so very explicitly that the FBI, quote, did not withhold plaintiff's own name within the records.

[00:47:48] Speaker 04:
That is at JA-658.

[00:47:50] Speaker 04:
That is not Mr. Cabezas's name.

[00:47:53] Speaker 04:
It's not any variation of his name.

[00:47:54] Speaker 04:
It's not any misspelling of its name.

[00:47:55] Speaker 04:
It's a completely different name.

[00:47:57] Speaker 04:
And so it is properly withheld.

[00:48:02] Speaker 04:
I want to address briefly also the backdating allegations.

[00:48:05] Speaker 04:
This is based on two different versions of an NCIC report that is in the record.

[00:48:10] Speaker 04:
Now, those two different versions are different in many ways.

[00:48:13] Speaker 03:
One is... Before you move on, I'm just thinking about this question of the supplemental search.

[00:48:18] Speaker 03:
I think that Mr. Horowitz had also, or maybe it was Cadence at the time, had also identified it was some kind of a log

[00:48:25] Speaker 04:
And that wasn't actually that was identified in the reply brief, your honor.

[00:48:29] Speaker 04:
It was not mentioned in the opening brief, but there was.

[00:48:31] Speaker 04:
So there was the initial the FBI in this case initially claimed a broader exemption seven a exemption because court proceedings were still ongoing.

[00:48:41] Speaker 04:
Once those court proceedings resolved in favor of the government, it began processing records for release.

[00:48:45] Speaker 04:
Now that I think it was a 10 87.

[00:48:49] Speaker 04:
FD1087 was mentioned on a Vaughan index in connection with that earlier 7A withholding.

[00:48:55] Speaker 04:
It is not mentioned in the current Vaughan index, and that is because it has been released to Mr. Cabezas.

[00:49:01] Speaker 04:
It is in the joint appendix at JA464.

[00:49:05] Speaker 04:
If you look in the top left-hand corner of that document, FD1087, Federal Bureau of Investigation collection item lock.

[00:49:13] Speaker 04:
So that accounts for that.

[00:49:14] Speaker 04:
464, Your Honor.

[00:49:19] Speaker 03:
Yes, your honor.

[00:49:26] Speaker 04:
So that is the FD1087.

[00:49:28] Speaker 03:
And the ensuing pages?

[00:49:31] Speaker 04:
I believe it's just one page.

[00:49:33] Speaker 04:
Oh no, yes, the ensuing, the one ensuing page, I believe.

[00:49:36] Speaker 03:
No.

[00:49:38] Speaker 04:
Oh yes, that's a 302, correct.

[00:49:40] Speaker 04:
Yeah.

[00:49:41] Speaker 04:
Yes.

[00:49:43] Speaker 04:
That's correct.

[00:49:44] Speaker 03:
That's helpful, thanks.

[00:49:47] Speaker 04:
On the back dating, that's referring to two different NCIC reports.

[00:49:50] Speaker 04:
If you look at those reports, they're two different reports.

[00:49:54] Speaker 04:
One is more fulsome than the other.

[00:49:56] Speaker 04:
Both of them have information redacted, so I don't think that they

[00:50:01] Speaker 04:
lend themselves to a one-on-one comparison to determine whether or not they're obviously going to be different.

[00:50:07] Speaker 04:
Certainly, the presence of additional information in one rather than the other does not indicate any backdating.

[00:50:13] Speaker 04:
And certainly, it does not indicate any flaw in the FBI's handling of this FOIA request.

[00:50:21] Speaker 03:
On the VON edX, there's a description of records, Bates numbers 167 to 216.

[00:50:30] Speaker 03:
The VON edX refers to them as undated photographs.

[00:50:36] Speaker 03:
But the FBI declarations describe them as undercover communications.

[00:50:44] Speaker 03:
screenshots of undercover communications with Cabeza.

[00:50:47] Speaker 03:
So that's why they're in one place described as photographs and another place described as communications.

[00:50:52] Speaker 04:
I don't want to reveal more information than the FBI has put into the declarations and get into some law enforcement sensitive information.

[00:50:59] Speaker 04:
But I will confirm, Your Honor, that they are both photographs and communications.

[00:51:03] Speaker 03:
They're both photographs?

[00:51:04] Speaker 04:
Yes, they are both of those things at the same time.

[00:51:06] Speaker 03:
They meet both definitions.

[00:51:07] Speaker 04:
That's correct, Your Honor.

[00:51:11] Speaker 04:
And they are withheld as under Exemption 70.

[00:51:17] Speaker 03:
And so in the FBI's declarations, those text messages have already been released.

[00:51:36] Speaker 04:
Um, the text messages with Mr. Capasis that the FBI maintained on its own side, that it had full chain of custody for, uh, those have been released as well as all of the communications.

[00:51:47] Speaker 04:
My friend was referring to communications through Craigslist.

[00:51:50] Speaker 04:
Those emails have been released.

[00:51:53] Speaker 03:
And he wanted the agent side phone.

[00:52:01] Speaker 04:
I think he indicates that the agent, I mean, everything from the agent side that was the communications with Mr. Cabezas from the agent side have been released.

[00:52:11] Speaker 04:
They were part of the investigation file and they were released in fall, or at least with minor 7C redactions.

[00:52:17] Speaker 04:
My understanding of the agent phone is that's his contention that an IP address linked up to a T-Mobile ISP.

[00:52:25] Speaker 04:
We think it's a total non sequitur to get from that to the conclusion that somehow the device that was used to use the T-Mobile ISP service was not covertly purchased or that it was a home computer

[00:52:40] Speaker 04:
It's a total non sequitur, and I don't think it has anything to do with whether or not the FBI processed this FOIA request in good faith and released the information that it had.

[00:52:49] Speaker 04:
Like I said, the communications from the FBI with Mr. Cabeza spoke the Craigslist emails and the text messages were released.

[00:52:57] Speaker 04:
Does the court has any further questions?

[00:52:59] Speaker 03:
Judge Rogers.

[00:53:00] Speaker 03:
Oh, thank you.

[00:53:02] Speaker 04:
Thank you.

[00:53:02] Speaker 04:
Please affirm the district court.

[00:53:07] Speaker 00:
I'm back.

[00:53:09] Speaker 00:
I would just briefly.

[00:53:12] Speaker 00:
Thank you for the extra two minutes I won't use all of it briefly just point to the idea and your honors have raised it very recently.

[00:53:22] Speaker 00:
that was the custodian of records in this case, gave additional records when they were doing, that were not contained in the CRS report.

[00:53:31] Speaker 00:
I don't think we have an affidavit from that underlying agent saying that they have produced everything and that they were able to get everything.

[00:53:40] Speaker 00:
It's more of a secondary declaration.

[00:53:44] Speaker 02:
So I would just point out again that- Confirming what he was told

[00:53:49] Speaker 02:
or what the reports show.

[00:53:52] Speaker 00:
No.

[00:53:52] Speaker 00:
So confirming that all of the records that that custodian himself in Tampa actually had that were related, that were responsive had been produced, right?

[00:54:02] Speaker 00:
Because the, the, the, I don't know, Seidel.

[00:54:06] Speaker 02:
What about the third Seidel declaration?

[00:54:12] Speaker 02:
Any event, you don't need to worry about it.

[00:54:14] Speaker 02:
We'll just look it up.

[00:54:15] Speaker 01:
Okay.

[00:54:16] Speaker 01:
Well, you're arguing that Seidel

[00:54:20] Speaker 01:
can't testify to hearsay in his declaration.

[00:54:24] Speaker 00:
Exactly.

[00:54:24] Speaker 00:
He doesn't have personal knowledge of the records in Tampa.

[00:54:28] Speaker 00:
He's not in Tampa.

[00:54:30] Speaker 01:
But we almost never in FOIA cases get firsthand declarations from the people who actually conduct the search.

[00:54:42] Speaker 01:
We get secondhand declarations from someone who oversaw the search.

[00:54:50] Speaker 00:
I suppose that makes sense, especially when things are kept in a centralized location.

[00:54:57] Speaker 00:
I think the concern, it's always been my client's concern is that the things weren't kept in a centralized location.

[00:55:03] Speaker 00:
And so the idea that,

[00:55:05] Speaker 00:
the person who's overseeing the search can testify what their procedures are for keeping the records and can testify about the scope of their search and who they talk to.

[00:55:14] Speaker 00:
But when you've discovered specific records that were outside of where they should have been, and they were held by some other custodian, I don't know how they can testify and, you know.

[00:55:27] Speaker 02:
What's your best case on that?

[00:55:31] Speaker 00:
Say that again.

[00:55:31] Speaker 00:
Oh, I don't have a,

[00:55:34] Speaker 02:
I mean, that was the implication of Judge Wilkins' question.

[00:55:40] Speaker 00:
Yeah, I mean, it's hearsay.

[00:55:41] Speaker 00:
I mean, it's just evidentiary.

[00:55:43] Speaker 02:
And I'm saying, what's your best case?

[00:55:48] Speaker 00:
I don't have a hearsay case in front of me on this particular issue.

[00:55:51] Speaker 00:
I could wrap the letter for you, but I don't have it.

[00:55:56] Speaker 02:
But you do have a citation?

[00:55:59] Speaker 02:
A case citation?

[00:56:01] Speaker 00:
with respect to, no, this is, I don't.

[00:56:05] Speaker 00:
I don't have it with me today.

[00:56:06] Speaker 03:
All right, thank you.

[00:56:08] Speaker 03:
And so the things you had identified that led you to believe that the materials that you got from the supplemental search were inadequate, you said were the phone and the potential personal computer,

[00:56:22] Speaker 00:
And yes, the IP address T mobile IP address and the fact computer and the fact that these at least one of the two agents involved had previously been reprimanded for for doing exactly what we think happened here.

[00:56:40] Speaker 01:
Did you ever argue in the district court that the third side declaration, at least to the extent that there were paragraphs

[00:56:49] Speaker 01:
that talked about what subsequent search was done in Tampa.

[00:56:55] Speaker 01:
Um, that that declaration should be stricken because it's hearsay.

[00:57:02] Speaker 01:
I don't think I made that argument.

[00:57:05] Speaker 03:
All right.

[00:57:06] Speaker 03:
Thank you so much, Mr. Lawrence.

[00:57:08] Speaker 03:
Thank you, Mr. Walker.

[00:57:10] Speaker 03:
In case is submitted.